Dheeraj vs State Of U.P. And 3 Others
2023 Latest Caselaw 9941 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 462 of 2023
 

 
Applicant :- Dheeraj
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Shyam Sunder Mishra,Abhay Raj Yadav
 
Counsel for Opposite Party :- G.A.,Shailendra Singh,Tanisha Jahangir Monir
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri V.K. Ojha, Advocate holding brief of Sri Abhay Raj Yadav, learned counsel for applicant, Sri Shailendra Singh, Advocate for Complainant, Ms. Tanisha Jahangir Monor, Advocate for High Court Legal Services Committee and Sri Rishi Chaddha, learned AGA for State.

2. Applicant-Dheeraj has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 33 of 2022, under Sections 376, 504 IPC and 6 of POCSO Act, Police Station Sardhua, District Chitrakoot, after rejection of his bail application vide order dated 29.11.2022 passed by Special Judge POCSO Act/ Additional Sessions Judge, Chitrakoot.

3. Contents of FIR are that Informant?s minor sister was repeatedly raped by named accused (applicant) on false promise of marriage. She became pregnant of about 6 months and marriage of applicant was fixed at some other place at about two months ago, therefore, FIR was lodged.

4. Learned counsel for applicant submits that applicant has disputed age of victim that alleged educational document is simply a letter of Principal of School. Learned counsel further submits that statement of victim, as recorded under Sections 161 and 164 Cr.P.C., appears to be improbable as time of alleged incident of rape is disclosed to be at 03.30 AM in winter night of the month of January and that there was no complaint made by victim till she became pregnant of six months and even after two months when marriage of applicant fixed at some other place. Learned counsel for applicant has taken the Court to the statement of victim recorded during trial and read out part of her cross-examination in support of his submission that nature of evidence is such that entire prosecution story would fall down and there is not even a minimum possibility of conviction of applicant for the offences levelled. He also submits that applicant is in jail since 29.08.2022 and since statement of victim has already been recorded, therefore, there is no likelihood that applicant would influence any witness.

5. Above submissions are opposed by learned AGA and learned counsels appearing for Complainant as well as High Court Legal Services Committee. They submit that victim has specifically made allegation of repeated rape on applicant under false promise of marriage. She became pregnant also. They also submit that victim has supported prosecution case in her examination-in-chief before Trial Court, therefore, any comment on her cross-examination at this stage would adversely affect case of either parties. Learned counsel appearing for High Court Legal Services Committee placed reliance on Supreme Court?s judgment in X (Minor) vs. The State of Jharkhand and another, (Criminal Appeal No. 263 of 2022), decided on 21.02.2022.

6. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

7. In the present case, statement of victim (according to educational document, a minor girl) appears to be consistent that applicant raped her under false promise of marriage. She also became pregnant, however, applicant not only refused to marry her but his marriage was fixed with some other girl.

8. Alleged dispute raised by learned counsel for applicant with regard to age of victim cannot be considered at this stage, since relied on document is of the Principal of a School and applicant will have liberty to cross-examine him if prosecution place him as witness.

9. Learned counsel for applicant has strongly placed reliance on cross-examination of victim recorded during trial. On the face of argument it appears that prosecution has weak case, however, there is merit in the argument of learned AGA that any comment of this Court with regard to nature of evidence of victim, will prejudice case of either side, therefore, Court is not making any comment on it at this stage.

10. Be that as it may, there is merit in the argument of learned counsel for applicant that applicant is in jail since 29.08.2022 and since evidence of victim has already been recorded, possibility to influence any prosecution witness does not arise, therefore, applicant is entitled for bail.

11. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.

12. Let the applicant-Dheeraj be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(iii) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.

13. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

14. The bail application is allowed.

15. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 5.4.2023

AK